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Office of the Attorney General

Memo: Ensuring Racial Neutrality in Prosecution Process

Office of the Attorney General Washington, D.C. 20530

January 9, 1998

MEMORANDUM FOR ALL UNITED STATES ATTORNEYS

FROM: THE ATTORNEY GENERAL

SUBJECT: Ensuring Racial Neutrality in Prosecution Practices

In October 1995, I established a working group of United States Attorneys and representatives of the Criminal Division to review allegations of racial disparity caused by federal prosecution practices. The working group focused on three potential problem areas identified by various studies: crack prosecutions; substantial assistance motions; and gun charging practices. The group found no evidence of a serious problem of racial disparity in any of these areas, yet was unable to account for all of the statistical differences between the races. Because we must remain mindful of the effects of our practices, I would like to reiterate the Department's policies aimed at ensuring that similarly situated defendants are treated the same 1 and ask you to review your overall practices for consistency with this goal. In light of the Administrations' recommendations for changing cocaine sentencing, I do not address crack prosecution practices in this memorandum.

REVIEW OVERALL PROSECUTION PRACTICES

Each United States Attorney should examine his or her office's practices and procedures and take all necessary measures to ensure the use of race-neutral policies in the exercise of prosecutorial discretion within a district. Absent compelling, specific law enforcement imperatives there is ordinarily no justification for differing policies and practices within a district with respect to similarly situated defendants. Moreover, any race-neutral policy that has a disparate racial impact should be carefully reviewed to determine whether the disparity is justified by law enforcement necessity and not the product of conscious or unconscious racial bias.

SUBSTANTIAL ASSISTANCE

Care must be taken to ensure that race plays no part in the Government's decision whether to file a substantial assistance motion or the amount of any recommended reduction. Consistent review within the office of such motions helps assure uniformity and fairness within the district.

As set forth in U.S.A.M. 9-27.400, the filing of a 5K1.l pleading must be approved by the United States Attorney, the Chief Assistant, supervisory criminal AUSAs or a committee including at least one of these individuals. Each office must have in place a procedure for such approvals. In addition, every office must maintain documentation of the facts behind and justification for each substantial assistance pleading.

GUN CHARGING PRACTICES

Likewise, to ensure that race plays no part in our prosecution of firearms offenses, prosecutors must consistently abide by the strictures of U.S.A.M. 9-27.300 and 27.400 concerning the charging and dropping of readily provable charges, including charges of 18 U.S.C. §924(c). The basic policy is that prosecutors must charge "the most serious offense that is consistent with the nature of the defendant's conduct, and that is likely to result in a sustainable conviction." U.S.A.M 9-27.300. Prosecutors may drop readily provable charges only with the specific approval of the United States Attorney or designated supervisory level officials for reasons set forth in the file of the case. U.S.A.M. 9-27.400. Every office should have in place procedures implementing these policies.

RACIAL DISPARITY AWARENESS

As the chief federal law enforcement officer in the district, the United States Attorney should take a leadership role in ensuring that all agencies within the district are aware of issues of racial disparity. The United States Attorney should also be alert to the implementation of race-neutral policies by all law enforcement within the district. These concerns should be raised by the United States Attorney in meetings with the agency heads.

I am proud of the Department's record of race-neutral prosecutorial decisions. Nonetheless, I believe constant vigilance in this area is essential. Sensitivity to the issue, and implementation of the measures outlined in this memorandum, will preserve and enhance the Department's record of race-neutral prosecution practices. In addition, and as importantly, our constant vigilance will ensure that there is no perception of racial disparity in the discharge of our duties. The public recognition that our policies are administered in a race-neutral fashion is as important as the reality that we do so administer them. I look forward to working with you in the pursuit of these goals.

1 In this regard, I have attached a memorandum dated April 7, 1997 to all federal prosecutors and United States Attorneys from John C. Keeney and Donald K.Stern, which more generally and fully sets forth Department of Justice policies on charging decisions, plea agreements, and substantial assistant motions.